People of Michigan v. Cedrick Alonzo Glenn ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 10, 2015
Plaintiff-Appellee,
v No. 321916
Wayne Circuit Court
CEDRICK ALONZO GLENN, LC No. 14-000138-FC
Defendant-Appellant.
Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.
PER CURIAM.
Cedrick Alonzo Glenn appeals as of right his jury trial convictions of assault with intent
to do great bodily harm less than murder (AWIGBH),1 assault with a dangerous weapon
(felonious assault),2 and possession of a firearm during the commission of a felony (felony-
firearm).3 The trial court sentenced Glenn to 80 to 120 months for AWIGBH, to be served
consecutive to a two-year term of imprisonment for felony-firearm, and time served for felonious
assault. We affirm.
I. FACTUAL BACKGROUND
Glenn’s convictions arise out of a shooting that occurred on December 13, 2013. Prior to
this date, Glenn and Arthur Edward Perry, Jr. disputed who was entitled to possession of a
Cadillac Escalade.4 On the date of the shooting, at about 9:30 p.m. or 10:00 p.m., Perry drove up
to his house in the Escalade and parked in the driveway. As Perry got out of the vehicle, he saw
Glenn approach from behind the house and walk past him, toward the Escalade. Glenn asked
Perry for the Escalade, but Perry refused.
1
MCL 750.84.
2
MCL 750.82.
3
MCL 750.227b.
4
Glenn had purchased the Escalade, but with the intent that one of Perry’s relatives would use
and pay for the truck. When payments were not made, Glenn demanded the truck be returned.
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Perry went into his house and, after about five minutes, walked out of the house with
Taronta Washington.5 The two entered the Escalade, Perry in the driver’s seat and Washington
in the passenger seat. As Perry began backing out of the driveway, Washington pointed out two
men standing nearby. These men were later identified as Dontae Wheeler and Alfred Coats-
Plunkett, two friends of Glenn. Washington then grabbed Perry. She said, “he got a gun,” and
directed Perry to look straight up the driveway. Perry saw Glenn come around the side of the
house with a gun. Perry testified that Glenn “cocked the gun back and looked dead at me.”
Glenn walked down the driveway, following the Escalade, and started firing a handgun at the
Escalade. Neither Perry nor Washington was struck. Perry drove until the Escalade broke down
and started smoking, about a quarter mile away. Police later observed five bullet holes in the
Escalade: two in the front grill, one in the driver’s side mirror, one below the driver’s side door
handle, and one on the driver’s side rear quarter panel.
A jury found Glenn guilty of AWIGBH with respect to Perry, felonious assault with
respect to Washington, and felony-firearm. Glenn now appeals as of right.
II. DISCUSSION
A. PHOTOGRAPHIC EVIDENCE
Glenn first argues that the trial court abused its discretion when it admitted photographs
of the Escalade on the second day of trial which had not been previously provided to Glenn. We
disagree. This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of
discretion.6 This Court also reviews for an abuse of discretion whether a trial court correctly
admits or excludes evidence in light of an alleged criminal discovery violation.7 “A trial court
abuses its discretion when its decision falls outside the range of principled outcomes.”8
Discovery in a criminal case is governed by MCR 6.201.9 Under this rule, on the request
of an opposing party, a party must provide “a description of and an opportunity to inspect any
tangible physical evidence that the party may introduce at trial, including any document,
photograph, or other paper, with copies to be provided on request.”10 The rule also imposes on
all parties a continuing duty to disclose evidence.11 If a party fails to comply with the court rule,
5
Washington lived in the house, along with several other of Perry’s relatives.
6
People v Burns, 494 Mich. 104, 110; 832 NW2d 738 (2013).
7
MCR 6.201(J). See also People v Banks, 249 Mich. App. 247, 252; 642 NW2d 351 (2002).
8
People v Feezel, 486 Mich. 184, 192; 783 NW2d 67 (2010) (citation and quotation marks
omitted).
9
People v Greenfield (On Reconsideration), 271 Mich. App. 442, 447; 722 NW2d 254 (2006),
citing People v Phillips, 468 Mich. 583, 588; 663 NW2d 463 (2003).
10
MCR 6.201(A)(6).
11
MCR 6.201(H).
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various sanctions are available, including ordering disclosure, granting a continuance, or
prohibiting introduction of the evidence.12 Fashioning an appropriate remedy involves a
balancing of “the interests of the courts, the public, and the parties in light of all the relevant
circumstances, including the reasons for noncompliance.”13 The complaining party must also
demonstrate that the violation caused him or her actual prejudice.14
Before trial, the prosecutor requested that the Detroit Police Department take photographs
of the Escalade. Glenn’s counsel requested copies of the photographs. The prosecutor informed
Glenn’s counsel that the police did not follow through with the request, and thus, there were no
photographs to provide. Then, on the first day of trial, the prosecutor informed Glenn’s counsel
that an officer photographed the Escalade that day and provided counsel with four photographs.
Glenn’s counsel did not object to the introduction of these four photographs.
On the second day of trial, the prosecutor asked Sergeant Nathan Duda if he had taken
the four photographs of the Escalade. Duda confirmed that he did, and mentioned that he had
“additional photographs as well.” Duda explained that he took the photographs of the Escalade
on the first day of trial and that he had attempted to send these photographs to the prosecutor via
email, but that the email failed. Glenn’s counsel repeatedly objected to the admission of these
additional photographs. The trial court took a recess for lunch and requested that the additional
photographs be printed. After the break, the prosecutor provided the additional photographs to
Glenn’s counsel and to the trial court. Over Glenn’s objection, the trial court granted the
prosecutor’s request to introduce these additional photographs.
Under these circumstances, we do not find that the trial court’s admission of the
photographs was an abuse of discretion. “[T]he exclusion of otherwise admissible evidence is a
remedy which should follow only in the most egregious cases.”15 Both parties only became
aware of the existence of the photographs when Duda mentioned that he had taken them.
Clearly, the prosecutor was not attempting to gain a tactical advantage by hiding evidence until
after trial commenced because she did not know the additional pictures existed. This is not an
example of an egregious discovery violation.
Nor can Glenn demonstrate any prejudice arising from the introduction of the
photographs. Duda testified regarding the number and location of the bullet holes found in the
Escalade, the same information demonstrated by the photographs. Glenn’s counsel was provided
copies of the photographs and given an opportunity to cross-examine Duda. Moreover, the
photographs proved beneficial to Glenn. Because the photographs were taken at the police
impound lot, the introduction of the photographs allowed Glenn to argue that the Escalade could
12
MCR 6.201(J).
13
Banks, 249 Mich. App. at 252.
14
People v Davie (After Remand), 225 Mich. App. 592, 598; 571 NW2d 229 (1997).
15
People v Taylor, 159 Mich. App. 468, 487; 406 NW2d 859 (1987). See also Greenfield, 271
Mich. App. at 454 n 10 (same).
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have been shot at while sitting out in the open in the impound lot for three months, an argument
favorable to Glenn.16 Under these circumstances, the trial court did not abuse its discretion by
allowing the photographs into evidence.
B. MISSING WITNESS INSTRUCTION
Glenn next argues that the trial court abused its discretion by refusing to give a missing
witness instruction. We disagree. This Court reviews “a trial court’s determination of due
diligence and the appropriateness of a ‘missing witness’ instruction for an abuse of discretion.”17
A missing witness instruction18 may be appropriate when the prosecution fails to produce
an endorsed witness who has not been properly excused.19 “A prosecutor who fails to produce
an endorsed witness may show that the witness could not be produced despite the exercise of due
diligence. If the trial court finds a lack of due diligence, the jury should be instructed that it may
infer that the missing witness’s testimony would have been unfavorable to the prosecution’s
case.”20 “[D]ue diligence is the attempt to do everything reasonable, not everything possible, to
obtain the presence of a witness . . . .”21 Whether the missing witness instruction is appropriate
“will depend on the specific facts of the case.”22
Glenn argues that the prosecutor did not act with due diligence to procure Officer David
Tanner at trial. On the second day of trial, the arresting officers, Officer Delvecchio Thompson
and Tanner, failed to appear at court to testify. The prosecutor explained:
The officer in charge has been trying to locate both officers for the past
two days, actually, and has been unable to contact them. I’ve sent subpoenas to
the officers. I’ve done all the necessary steps that the prosecutor need[s] to do by
sending these subpoenas, sending them through the DPD email this morning.
Glenn’s counsel suggested that a missing witness instruction would be appropriate. The
trial court did not rule on the issue at that time, instead choosing to wait to see if Thompson and
Tanner would appear the next day. The following day, Thompson appeared and testified, but
Tanner did not. The officer in charge, Detective John Velasco, testified that “[w]e tried to get
16
This argument provided another avenue supporting Glenn’s theory of the case, which was that
Glenn never shot at the Escalade, and that the Escalade was shot at by someone else after Perry
drove it away from his home.
17
People v Eccles, 260 Mich. App. 379, 389; 677 NW2d 76 (2004).
18
See M Crim JI 5.12.
19
People v Perez, 469 Mich. 415, 420; 670 NW2d 655 (2003).
20
Eccles, 260 Mich. App. at 388-389 (citations omitted).
21
Id. at 391.
22
Perez, 469 Mich. at 415.
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him here. We tried—I’ve exhausted every avenue to get him here. . . . Called him, text[ed] him,
put subpoenas everywhere at the station.” The prosecutor raised the question of providing a
missing witness instruction, and the trial court decided against giving the instruction. Glenn did
not argue the point.
The trial court’s decision was not an abuse of discretion. Tanner was one of the arresting
officers in this case and he remained employed by the Detroit Police Department. There is no
evidence indicating that the prosecutor had any reason to doubt whether Tanner would appear for
trial. When Tanner did fail to appear, both the prosecutor and the officer in charge attempted to
secure his presence. The prosecutor sent subpoenas via Detroit Police email to Tanner, and
Velasco went further by calling him, texting him, and posting subpoenas at the police station
where Tanner worked. Glenn argues that the prosecutor should have taken an additional step,
specifically, sending a subpoena to Tanner’s home, and that Velasco should have gone to
Tanner’s home to attempt to find him and serve him with a subpoena. But “due diligence” is the
attempt to do everything reasonable to obtain the presence of a witness, not everything
possible.23 Under the circumstances, the prosecutor made reasonable efforts to obtain Tanner’s
presence, and accordingly, a missing witness instruction was not required.
Glenn also argues that because his counsel failed to renew his request for the missing
witness instruction or object to the failure to instruct, counsel was ineffective. The argument is
specious, given that counsel did request the instruction, the prosecutor again raised the point, and
the trial court ruled on the issue. Regardless, “[f]ailing to advance a meritless argument or raise
a futile objection does not constitute ineffective assistance of counsel.”24 As Glenn was not
entitled to the instruction, counsel was not ineffective for failing to further advance a meritless
argument.
C. JUDICIAL BIAS
Glenn next argues that the trial court abused its discretion when it questioned several
witnesses at trial. We disagree. Glenn failed to preserve this issue by objecting to the trial
court’s questioning of witnesses during trial.25 Thus, this Court’s review is for plain error that
affected substantial rights.26 To be entitled to relief, Glenn must demonstrate that (1) an error
occurred, (2) the error was plain, i.e., clear or obvious, and (3) the error affected his substantial
rights.27 “The third requirement generally requires a showing of prejudice, i.e., that the error
affected the outcome of the lower court proceedings.”28 Finally, even if these requirements are
23
Eccles, 260 Mich. App. at 391.
24
People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
25
People v Jackson, 292 Mich. App. 583, 597; 808 NW2d 541 (2011).
26
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999); Jackson, 292 Mich. App. at
597.
27
Carines, 460 Mich. at 763.
28
Id.
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met, “an appellate court must exercise its discretion in deciding whether to reverse. Reversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affected the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.”29
Our Supreme Court recently clarified the proper scope of a trial court’s questioning of
witnesses:
[W]hen evaluating a judge’s questioning of witnesses, a reviewing court must first
bear in mind that such interrogation is generally appropriate under MRE 614(b).
This Court has stated the central object of judicial questioning should be to
clarify. Therefore, it is appropriate for a judge to question witnesses to produce
fuller and more exact testimony or to elicit additional relevant information.
Judicial questioning, nevertheless, has boundaries. . . .
* * *
It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or
unintentionally. It is essential that the judge not permit his own views on disputed
issues of fact to become apparent to the jury.[30]
Glenn first claims that the trial court improperly questioned Washington. The trial court
asked Washington a series of questions regarding how Glenn was dressed during the shooting.
The trial court also questioned Washington regarding her familiarity with Glenn. Nothing in the
record demonstrates any improper questioning by the trial court. The trial court did not exhibit
any disbelief of Washington, or any other bias or prejudice. As it is permitted to do, the trial
court sought to “produce fuller and more exact testimony [and] elicit additional relevant
information.”31 Accordingly, we find no error.
Glenn next claims that the trial court improperly questioned Duda:
Trial Court. All right. I have a—I skimmed over the pictures. But the
damage to the driver’s side mirror was—are you able to say what direction the
shot was coming from when it hit the mirror?
Sergeant Duda. I could reasonably conclude that if I took a rod, a steel
rod roughly 12 inches in length, and I was to place it in line with the end position,
that final hole within the triangle and where the mirror was struck, the shot came
slightly from the side and towards the rear of the vehicle.
29
Id. at 763-764 (quotation marks, brackets, and citation omitted).
30
People v Stevens, ___ Mich ___, ___; ___ NW2d ___ (2015) (slip op at 10-11) (citations,
quotation marks, and footnote omitted).
31
Id. at ___ (slip op at 11).
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Trial Court. Okay. Thank you. That’s the only question—
Again, the trial court’s questioning was limited to producing more precise testimony.
Noting in this questioning demonstrates disbelief of the witness or that the trial court was biased
or prejudiced in any way. We find no error in the trial court’s questioning of Duda.32
Glenn also argues that the trial court’s questioning of Wheeler and Coats-Plunkett was
exceedingly adversarial and “crossed the line from a simple clarification of witness testimony to
a multitude of impermissibly suggestive and prejudicial questions” posed to these witnesses.
Contrary to Glenn’s assertions, the questions posed to these witnesses did not demonstrate any
form of prejudice by the trial court. As it did with other witnesses, the trial court simply
attempted to gain a better understanding of what happened during the incident from the
perspective of these witnesses. The trial court did not express any opinion or disbelief of these
witnesses; it merely clarified where these witnesses were and what they observed during the
shooting. Such questioning is entirely proper.33
Glenn also contends that his counsel was ineffective for failing to object to the trial
court’s questioning of the witnesses. However, as there was no impermissible conduct by the
trial court, any objections would have been futile. Again, counsel is not ineffective for failing to
raise futile objections.34
D. PROSECUTORIAL MISCONDUCT
Glenn asserts that the prosecutor engaged in misconduct during closing argument when
she attacked the credibility of Glenn’s stepfather, Deon Rollins, by stating that his behavior on
the night of the incident was “ridiculous” and “inappropriate.” We disagree. Because Glenn did
not raise the argument below, we review the issue for plain error affecting Glenn’s substantial
rights.35
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.”36 “Prosecutorial comments must be read as a whole and evaluated in light of
defense arguments and the relationship they bear to the evidence admitted at trial.”37 A
prosecutor may not make a statement of fact to the jury that is unsupported by the evidence, but
they are “free to argue the evidence and all reasonable inferences arising from the evidence as it
32
Id.
33
Id.
34
Ericksen, 288 Mich. App. at 201.
35
Carines, 460 Mich. at 763.
36
People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007).
37
People v Brown, 279 Mich. App. 116, 135; 755 NW2d 664 (2008).
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relates to their theory of the case.”38 A prosecutor may also argue from the facts in evidence that
a witness is worthy or unworthy of belief.39
Glenn assigns error to the following statements during closing argument:
Now, I want you to think about the defendant’s step-father’s testimony.
He got on the stand and testified to us that he works for the Department of
Education or DPS. That he told his step-son, let me check into roll call and then
I’ll come back and help you. Think about that when you judge the credibility of
his testimony.
You are on the job for the Detroit Public Schools. You are working for
the Board of Education. But you take it upon yourself to go interfere with the
Detroit Police Department investigation for a family member. That’s
inappropriate and it goes to his credibility. You then check into roll call to make
sure that you’re accounted for being there for the day and then you leave and you
go do DPD work when you’re not a Detroit Police officer.
You listen to their dispatch. You chime in on their radios. You go in a
scout car, issued for the Department of Education for the Detroit Police, turn the
lights on and go to a location where you think there may have been a shooting
where your step-son is involved. It’s ridiculous. It’s inappropriate behavior and
it goes to the character of that witness. And I want you all to consider that.
Then he continues for hours. Not working for the Detroit Public Schools,
but interfering with this investigation and updating a suspect. And giving him
information about what’s going on, where vehicles are, who’s called 9-1-1 and
updating this defendant.
Well, I submit to all of you to think about that and think about how the
defendant formed his story or formed the theory that’s been given to him.
None of these comments require reversal. While the prosecutor was aggressive with
some of her remarks, prosecutors are typically afforded great latitude regarding their arguments
and conduct at trial.40 The prosecutor’s remarks were valid commentary based on Rollins’s own
testimony and reasonable inferences arising therefrom. From this testimony, the prosecutor was
permitted to argue that Rollins was unworthy of belief.41
38
People v Unger, 278 Mich. App. 210, 236; 749 NW2d 272 (2008).
39
Dobek, 274 Mich. App. at 67.
40
People v Bahoda, 448 Mich. 261, 282; 531 NW2d 659 (1995).
41
Unger, 278 Mich. App. at 236; Dobek, 274 Mich. App. at 67.
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Glenn also contends that counsel was ineffective for failing to object to the above
comments by the prosecutor. Because there was no improper commentary, any objection would
have been futile. Once again, counsel is not ineffective for failing to raise a futile argument.42
E. INSUFFICIENT EVIDENCE
Defendant next argues that his conviction of AWIGBH must be vacated because there
was insufficient evidence that he attempted or intended to cause great bodily injury. “This Court
reviews de novo claims of insufficient evidence, viewing the evidence in the light most favorable
to the prosecution, to determine whether a rational trier of fact could find that the essential
elements of the crime were proved beyond a reasonable doubt.”43 Any conflicts in the evidence
are resolved in favor of the prosecution.44 Circumstantial evidence and reasonable inferences
arising from that evidence may constitute proof of the elements of the crime.45 This Court must
also “defer to the fact-finder’s role in determining the weight of the evidence and the credibility
of witnesses.”46
The elements of AWIGBH are “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than
murder.”47 “This Court has defined the intent to do great bodily harm as an intent to do serious
injury of an aggravated nature.”48 A defendant’s intent may be inferred from all the facts and
circumstances surrounding the crime.49
Glenn argues that the evidence does not support a conclusion that he intended to do great
bodily harm because it shows only that he shot at the Escalade. Glenn’s actions provided
sufficient circumstantial evidence of his intent to do great bodily harm to support his conviction.
At the time Glenn shot at the Escalade, Perry was seated in the driver’s seat. The majority of the
bullets entered the driver’s side of the vehicle. That Glenn pointed a gun directly at Perry,
42
Ericksen, 288 Mich. App. at 201.
43
People v Bennett, 290 Mich. App. 465, 471-472; 802 NW2d 627 (2010).
44
Id. at 472.
45
Id.
46
Id.
47
People v Parcha, 227 Mich. App. 236, 239; 575 NW2d 316 (1997).
48
People v Brown, 267 Mich. App. 141, 147; 703 NW2d 230 (2005) (quotation marks and citation
omitted).
49
People v Lugo, 214 Mich. App. 699, 709-710; 542 NW2d 921 (1995).
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cocked it, and then shot the gun in the direction of Perry, multiple times, at relatively close range
was sufficient to support the jury’s conclusion that Glenn intended to cause great bodily harm.50
Glenn also points to several “glaring holes” he believes existed in the prosecution’s case.
These “holes” all essentially challenge the weight and credibility of the evidence presented.
Such matters are properly left to the jury to decide, and we decline Glenn’s invitation to interfere
with the jury’s decision.51
F. CUMULATIVE ERROR
Finally, Glenn argues that the cumulative effect of the errors in this case deprived him of
his right to due process. “Absent the establishment of errors, there can be no cumulative effect
of errors meriting reversal.”52 Because Glenn has failed to establish the existence of any error,
there can be no cumulative error.
Affirmed.
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
/s/ Karen M. Fort Hood
50
See People v Dillard, 303 Mich. App. 372, 378; 845 NW2d 518 (2013) (explaining that a
defendant’s actions can provide circumstantial evidence of his intent to commit great bodily
harm, and that “it is not necessary for any actual injury to occur.”).
51
Bennett, 290 Mich. App. at 472.
52
Brown, 279 Mich. App. at 146 (citations omitted).
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